Opinion
No. 4146.
June 5, 1946.
Appeal from the District Court of the United States for the District of Massachusetts; Charles Edward Wyzanski, Jr., Judge.
Action by Thomas J. Kyle against Boston Maine Railroad to recover under the Federal Employers' Liability Act for personal injuries. From a judgment for plaintiff, defendant appeals.
Affirmed.
Francis P. Garland, of Boston, Mass. (Hurlburt, Jones, Hall Bickford, of Boston, Mass., on the brief), for appellant.
Edward S. Farmer, of Boston, Mass. (Brenda M. Dissel, of Boston, Mass., on the brief), for appellee.
Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges.
This is an appeal from a judgment entered on a verdict returned for the plaintiff in an action for personal injuries brought under the Federal Employers' Liability Act. 45 U.S.C.A. chapter 2, §§ 51-60. Our only question is the sufficiency of the evidence to support the verdict.
There is no question of the applicability of the Act and it is not disputed that the plaintiff-appellee was injured while working for the defendant-appellant as a machinist when a heavy part called the "wishbone" of a locomotive which he and a fellow machinist were repairing fell and struck him on the knee.
In affirming the judgment below it will suffice to say that there is ample testimony in the record to indicate, first, that although the plaintiff was experienced in the kind of work he was doing when he was hurt, he was at that time working under the direction and subject to the orders of his fellow machinist, and, second, that although the latter directed that their work be done in the usual or customary way, there was a safer way in which it could have been done which was sometimes adopted in the defendant's shop, and that, if this safer method of procedure had been followed, the injury which befell the plaintiff would not have occurred. Clearly this evidence is enough to take the issue of the defendant's causal negligence to the jury.
The judgment of the District Court is affirmed.